JUDGMENT V.R. Newaskar, J.

1. This is a defendant's second appeal. The dispute relates to right of way through land Khasara No. 236 in Mouja Dohad which is in the possession of defendant No. 1 Rawaji but stood in the revenue papers in the names of defendants 2 to 5. The right of way is claimed by the plaintiff Keshav whose house is situated at the southern end of Khasara No. 236. The plaintiff claims the right for going from his house through Khasara No. 236 of Rawaji and also through Khasara No. 242/2 which stood in the name of defendant No. 6 Udhav to the land which stood jointly in the name of plaintiff and his brother Kasana but which had been in his exclusive possession for the last 30 or 32 years and bore Khasara Nos. 242/1 and 243/1.

2. The plaintiff's case is that this right of way starting from the door of his house opening in Khasara No. 236 and passing through Khasara No. 242/2 towards his land Khasara Nos. 242/1 and 243/1 had existed from the time of his ancestors for the last 50 or 60 years as an easement and as of right and that consequently it had crystallised into an easement. The defendant however had obstructed the same by raising wooden barrier across the borders of Khasara Nos. 236 and also of 242/2 which adjoined Khasara No. 236 thereby preventing the plaintiff the use of the way for reaching his Khala in Khasara Nos. 242/1 and 243/1. This was done by defendant No. 1 sometime in May 1953. The plaintiff therefore claimed a declaration regarding this right of way, for a mandatory injunction for the removal of obstruction caused in it by defendant No. 1 and for a permanent injunction restraining all the defendants from interfering with this right. Plaintiffs brother Kasana supported the plaintiff's claim. The case proceeded ex parte against defendants 2 to 6.

3. The only defendant who resisted the plaintiffs claim was defendant No. 1 Rawaji. He denied that the plaintiff has any right of way through the Northern door of his house through his Khala bearing Khasara No. 236. It was denied that the plaintiff and his ancestors used to pass through his Khala and through that of Udhav to his Khala Khasara Nos. 242/1, 243/1 so as to crystallise into a right of easement. It was asserted that the way of the plaintiff is from his Southern door by a public way. According to the defendant a small door on the Northern side of his house had been kept with the permission of the defendant's father Gokul and the plaintiff used to pass on foot, through the Khala of defendant No. 1 during Gokul's life-time. This was due to the fact that the relations between Gokul and the plaintiff were cordial. After Gokul's death five years before the suit this way was stopped by raising wooden fencing. The defendant No. 1 therefore contended that the plaintiff had neither any right nor was the claim within limitation. Plea regarding misjoinder of parties and causes of action was also raised.

6. On consideration of the materials produced by the parties it held that the plaintiff had been using the way for more than 20 years. It further found that defendant No. 1's plea regarding permissive character of this user was not established. It however came to the conclusion that the plaintiff had failed to establish that the obstruction had been made by the defendant No. 1 in May, 1955, or any time within two years next before the institution of the suit. The claim was consequently held to be barred by time. Plaintiffs suit was consequently dismissed.

as of right, without interruption for 20 years and its continuance within 2 years next before the institution of the suit was sufficient to enable the plaintifi to succeed. But, according to the learned counsel, since the right relates tq the user in respect of the land belonging to Government, user for a period of 20 years is not enough. It ought to be established that such user was for over 60 years. The learned counsel relied upon the decisions reported a Chinnasami v. Balasundara, AIR 1934 Mad 575, Madan Mohan v. Sashi Bhusan, AIR 1915 Cal 403 and Chotey v. Dal Chand, AIR 1929 All 862 in support of his contention.

9. On this contention being raised by Mr. Pandey, Mr. Sanghi for the plaintifi submitted an application for amendment of the plaint by seeking alternatively to have his claim on a right acquired by long and immemorial user. Mr. Sanghi then relied upon the pleadings as they stood and contended that on those pleadings themselves the case of presumption of lost grant can be drawn from long and immemorial user. Such user may be in the nature of easement but its mode of acquisition is not by prescription. He suggested that all that the plaintiff alleged in the plaint was that the way had been used by his ancestors for over 50 or 60 years as of right and this did not exclude the case of acquisition by mode different from that mentioned in Section 15 of the Easements Act. The learned counsel relied upon the decisions in Maharani Rajroop Koer v. Abdul Hossein, 7 Ind App 240 (PC), Manmatha Nath v. Rakhal Chandra, AIR 1933 Cal 215, Nagarethna Mudaliar v. Sami Pillai, AIR 1936 Mad 682 (684-86), Radha Kishun v. Sunder Mal, AIR 1934 Pat II and Sheo Raj v. Mudeer Khan, AIR 1934 All 868 in support of his contention.

10. As regards Mr. Pandey's contention pressed by him on behalf of the defendant it seems clear by reference to the last clause of Section 15 of the Easements Act, 1882, that 'when the property over which a right is claimed under this section belongs to the state this section shall be read as if, for the words 'Twenty years' the words 'sixty years' were substituted. Thus in the case of land assessed to revenue where both the parties hold the land as the tenants of the State, a right cannot be acquired under Section 15 unless the period of enjoyment under conditions laid down in the Section lasts at least for sixty years. In AIR 1934 Mad 575 Varadachariar, J., repelled the contention raised on behalf of the plaintiff claimant whose enjoyment had not lasted for 60 years as against another tenants' land that the words 'belongs to Government' in the last clause of Section 15 (as it then was) involved both ownership of and possession by the Government and that the rule regarding sixty years' duration of enjoyment was not applicable to lands in possession of persons under a limited right. In AIR 1929 All 862, Mukerji, J., pointed out that by Section 8 of the Easements Act an easement may be imposed by a person who has no full title in his possession provided he has a right to transfer some interest which he holds although such imposition may not last beyond his tenure and that the broad proposition laid down by the lower Court that a tenant cannot acquire an easement against property of another tenant is not based on any sound principle.

11. In view oi the principles laid down in these decisions and having regard to the terms of the last clause of Section 15 it is clear that a right of easement as contemplated under Section 15 could not have been acquired by the plaintiff un less he has succeeded in establishing the period of his enjoyment to be sixty years.

12. Before considering the nature of the plaintiffs pleadings it will be necessary to take into account the decisions relied upon by Mr. Sanghi in support of his stand regarding right by means of a presumption of lost grant.

13. In 7 Ind App 240 (PC), their Lordships were concerned with the case of a right to a pyne or artificial water-course, and also to a Tal and the water flowing from them through the defendants' estate to his own. There was a finding regarding the enjoyment of the right for a period of over 20 years. But it was found that in the case of two points in the water course there had been interruption of the right which had lasted for more than a years. Contention on the basis of Section 27 of the Limitation Act as in force then was raised. Their Lordships held the section inapplicable as the rights according to their view, could properly rest on the principle of presumption of lost grant. They observed at page 246 :

"On the assumption of fact made by the Moonsiff that these obstructions had existed for more than two years before the suit he might be right in finding that the plaintiff had not had peaceable enjoyment for twenty years, ending within two years before the institution of the suit, and, therefore, that the plaintiff had acquired no title by virtue of this statute. The object of the statute was to make more easy the establishment of rights of this description, by allowing an enjoyment of twenty years, if exercised under the conditions prescribed by the Act, to give, without more, a title to easements. But the statute is remedial, and is neither prohibitory nor exhaustive. A man may acquire a title under it who has no other right at all but it does not exclude or interfere with other titles and modes of acquiring easements. Their Lordships think that in this case there is abundant evidence upon the facts found by the Courts for presuming the existence of a grant at some distant period of time."

Their Lordships then considered the applicability of Article 34 of the Limitation Act which provided for two years limitation for enforcement of a right the period being computed from the date of obstruction. They held that the cause of action in a case of that description arose de die in diem so long as the obstruction continues and the right was enforceable.

14. In AIR 1934 Pat 11, the Patna High Court took the view that there could be no prescription by one tenant against another tenant. No reference was made by them to Section 8 of the Easements Act or to the decisions bearing on the point. They then proceeded to hold however that there was no evidence in the case to assume that both of them were tenants of the same landlord. They then held in plaintiff's favour on the basis of presumption of lost grant. It was observed :

"In my opinion therefore the plaintiff's case must rest on a prescriptive title. In a case such as the present, where there is evidence of long enjoyment of the village in a particular way, it is the habit and duty of the Court, so far as it lawfully can, to clothe the fact with right: see Fry, J., in Moody v. Steggles (1879) 12 Ch D 261."

There was a finding in that case that the plaintiffs had established that their system of irrigation (which was in dispute), which had been in existence from time immemorial. On that finding the decision could properly rest on the presumption of lost grant.

15. In AIR 1936 Mad 682 it was held that apart from Section 15 of the Easements Act, a claim to title by lost grant can be made under the Easements Act. These observations are based on the view expressed by the Privy Council in 7 Ind App 240 (PC), referred to above. Their Lordships further held that even 20 years user under certain circumstances could be held sufficient for enabling the plaintiff, who claimed on that basis, to succeed. It was definitely held that no claim under Section 15 of the Easements Act was founded by the plaintiff in that case. The land of estate involved in that case was that of a Raiyatwari proprietor as in the present case. Their Lordships held that akin to case of a copyhold in the case of a Raiyatwari proprietor, the holder has a sufficient interest to enable him to make a grant of easement. The learned Judge Venkataramana Rao, J., after referring to the divergent views taken by Abdur Rahim, J. and Phillips, J., in Kuniparambil Parkum v. Kottiammoo, ILR 42 Mad 567 : (AIR 1919 Mad 339) observed :

"Whichever view is correct, in my opinion the principle applied by Bankes, L.J. to the case of a copyhold can legitimately be applied to the case of a ryotwari proprietor. Though copyhold is not a freehold, Bankes, L.J., stated he has sufficient estate to make a grant of easement for making the theory of lost grant applicable. It may equally be said that the estate of ryotwari proprietor is an estate in the soil and possession is with him though the property may be said to be in the Government. The estate of a ryotwari proprietor is also heritable and alienable. He has a sufficient estate to support a grant of an easement. He would be a 'capable grantor' as understood in English law for the application of the doctrine of lost grant."

The opinion of Bankes, L.J., referred to above was expressed by him in (1919) 1 KB 223 Derry v. Sanders.

16. In AIR 1933 Cal 215, Mitter, J., held that the plaintiffs in the case before him had rested their case not only upon prescription but also upon lost grant. Such a case was, according to his view implied in the averment made by them regarding the user of pathway disputed therein for 40 or 50 years and that the defendant had sufficient notice of it and no remand was necessary.

17. In AIR 1934 All 868, the question regarding use of land for burial was considered. It was held that the right of that description cannot be acquired by prescription but could properly rest on the presumption of dedication or lost grant where the user without let or hindrance was established for over a long period.

18. Having regard to these decisions we have first to construe the pleadings.

19. The plaintiff no doubt speaks of 'Sukhadhikar' but this is consistent with its being under Section 15 as well as under grant lost in antiquity. There are clear allegations regarding the user of the way for the last 50 or 60 years. The use of the word signifying 'easement' (Sukhadhikar) did not necessarily confine the averment of the plaintiff to the mode of acquisition under Section 15 of the Easements Act and could as well imply acquisition of it under a presumption ot lost grant. This is clear from the observation of the Privy Council in 7 Ind App 240 (PC) as also those of Venkataramana Rao, J., in AIR 1936 Mad 682 (687). The defendant was fully aware of these averments of the plaintiff and it does not appear, from the written statement, that he was anyway misled into believing the averments to be confined to Section 15 of the Easements Act. In fact the defendants took the plea of permissive use of the way at least for passage by the inmates of the plaintiff's house. The defendant no doubt averred the stoppage of the use five years back and the claim being barred by time but because of such a plea the nature of plaintiff's averment cannot be changed. The Courts below have definitely found against the defendant in respect of thb stand of the defendant regarding the plaintiff's use being permissive.

The lower appellate Court moreover has in supersession of the finding of the trial Court held that the interference in the plaintiff's use took place some time within two years. The defendant had opportunity to meet the plaintiff's averment regarding alleged use of the way by him and his ancestors for the last 50 or 60 years. He tried to meet it and led evidence on that point. There is therefore no prejudice likely to be caused to him if the case were considered on the basis of the mode of acquisition of the easement by lost grant. The fact that the Courts below considered the period of two years to be material in considering the question of limitation would not alter position regarding the nature of the right on which claim is founded. In fact the defendant in trying to contend that the enjoyment was permissive and had been barred by limitation has tried to meet the case regarding acquisition by lost grant as well.

20. Since I hold that no prejudice has been caused to the defendant owing to the nature of allegations on which the plaintiff's claim was founded, no remand is called for as in the Calcutta case referred to above.

21. On the construction of the plaintiffs pleadings as indicated above it is unnecessary to consider the application for amendment of the plaint submitted on his behalf by Mr. Sanghi before me.

22. On the findings of fact reached by the Court below and on the construction of the pleadings of the plaintiff regarding the foundation of his right and in view of the principles of law as culled from the decisions discussed above this appeal of the defendant ought to be dismissed as being without force.

23. The appeal is accordingly dismissed with costs.